Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:08-cv-00261-LAS

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Filed 07/22/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS BID PROTEST WATTS-HEALY TIBBITS A JV, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-261C (Senior Judge Smith)

MOTION FOR PARTIAL RELIEF FROM INJUNCTION Defendant, the United States, respectfully submits this motion for partial relief from the Court's injunction of July 18, 2008. Because total compliance with the Court's order would require the cessation of storm water protection activities in violation of the Clean Water Act ("CWA") 33 U.S.C. § 1251, et seq., without waiving any rights with respect to future action concerning the Court's injunction, we respectfully request that the Court provide this limited relief. In its injunction, the Court ordered that the United States of America, the Naval Facilities Engineering Command, Pacific, and its officers, agents, servants, employees and representatives, and all persons acting in concert and participating with them respecting further performance of the contract, be and they are hereby RESTRAINED AND ENJOINED from further performance of the contract during the pendency of this action until further order of this Court. Watts-Healy Tibbitts v. United States, No. 08-261 at 7 (Fed. Cl. July 18, 2008) ("WHT II"). The injunction stated that "[t]here has also been evidence presented by the protestor that mobilization has not yet begun and that the project is still in the permit stage." Id. at 2. That statement is not current. Although this may have been an accurate recitation of the status of the

Case 1:08-cv-00261-LAS

Document 70

Filed 07/22/2008

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project when made by one of WHT's principals, based upon undated observations by unknown persons, Heltzel Dec. of June 11, 2008 at ¶¶ 5-7, in the subsequent span of time, IBC/TOA has broken ground and has conducted significant operations.1 Due to the in extremis nature of the possible damage to the surrounding waters and sensitive marine habitats that could be caused by storm water runoff and the need to comply with the CWA, the Navy suspended all work on the contract on July 21, 2008, with the "exception of continuing the complete implementation of the Storm Water Pollution Prevention Plan (SWPPP) requirements which ensures compliance with the Clean Water Act." Attachment 1 (suspension notice). Specifically, "[t]he contractor has cleared and graded approximately 60,000 SM of area exposing soil in the area. We have just entered the rainy season here in Guam and we have and will continue to experience storm and monsoonal weather. This exposure poses a threat of storm water run off pollution into nearby water sources." Attachment 2 (Memorandum for Record re Suspension, dated July 22, 2008). We therefore respectfully request that the Court provide this limited relief from the injunction to allow the Navy to comply with the Clean Water Act and its environmental obligations. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director

We intend to make further filings concerning the state of work as of July 18, 2008, when the Court issued its injunction. 2

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Case 1:08-cv-00261-LAS

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/s/ Todd M. Hughes TODD M. HUGHES Deputy Director OF COUNSEL: ROBERT E. LITTLE Department of the Navy Washington, D.C. /s/ Stephen C. Tosini STEPHEN C. TOSINI Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel. (202) 616-5196 Fax. (202) 514-7969 Attorneys for Defendant

July 22, 2008

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Case 1:08-cv-00261-LAS

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CERTIFICATE OF FILING I hereby certify that on this 22nd day of July 2008, a copy of the foregoing "MOTION FOR PARTIAL RELIEF FROM INJUNCTION" was filed electronically. I understand that notice of this filing will be sent to all parties by electronic mail and operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s/ Stephen C. Tosini